How Do The Law and Social Media Intersect?
Provided by HG.org
Finding someone who does not have a Facebook, Twitter, Google+, LinkedIn, or other social media profile is getting harder to do. Granted, there are still a few stalwart holdouts, but the vast majority of Americans use social media everyday (in fact, you may have come across this article in your social media feed). With social networking such a huge part of our lives, are there any social media laws? How are common legal issues resolved when they occur in a social network?
Just as in the real world, one has basic civil rights as guaranteed by the U.S. Constitution in the cyber-world, including the right to free speech, free religion, freedom from unreasonable search and seizure, and so forth. And, just as in the real world, one can get in trouble for using those rights, for instance by tweeting something negative about an employer, by writing about illegal activities on one's Facebook page, or by incriminating oneself by posting photos holding stolen property. Obviously, such activities could lead to losing employment, being investigated, arrested, or even convicted just as if one had said or done these things in real life.
Also, the same rules apply to obscenity and decency on social media as they do in the real world, and most social sites are completely within their rights under the terms of service of use for that site to remove offensive content and ban profiles that post it. Because social media is a private enterprise and not state run, it can actually engage in greater degrees of control over certain kinds of content than the government can. So, while one may try to assert that an obscene or indecent photograph, video, or phrase should be allowed under the First Amendment right to free speech, the site may well be able to ban it on contractual grounds under its terms of service.
One of the biggest areas of concern in recent years has been the way in which technology has eroded the American right to privacy. Nevertheless, there are still some privacy rights and social media sites are beholden to them just like any other holder of confidential information. This might include your credit card information, you usage statistics, your location (for mobile social applications with check-in capabilities), and so forth. Also of concern are the privacy rights of others. If you are at an event and you start snapping photos, others depicted in those photos may or may not approve of having them put up on the Internet. Many, concerned about their reputation, have become increasingly concerned about the party-going friend who snaps shots of everyone after a few drinks and posts them online. While meant to be harmless, this could actually cost someone a job or interfere with their ability to obtain employment, because it could give the impression that the person depicted is a hard-partying type who may not perform as expected at work.
Another example is the unflattering photo, such as someone who has put on a few pounds but got caught at the beach in a swimsuit. Having such materials freely available to everyone in a person's social network could be embarrassing to the person depicted. Even more troubling could be depictions of children for obvious reasons. As a result, it may be best to make sure that everyone in a photograph approves its publication in social media before posting it or, at the very least, should someone object you should be agreeable to removing the picture.
One area of increasing concern is intellectual property rights in social media. While many brands are happy to have their products mentioned in social media, given the boost this can have to their bottom line, it becomes a bit more problematic when one begins taking copyrighted works and re-using them without attribution. Examples might include charts or pictures created by a website to illustrate a point that are then reused by others in social media without permission, perhaps even to support a competing product or service. Indeed, cases have already begun to sprout up over such practices, as well as quoting copyrighted writings without permission, using video clips from movies without a license, or sharing copyrighted songs.
Finally, another practice to be aware of in social media is the contest. Social media contests have become quite popular among companies trying to build awareness of their brand. But, this can be quite dangerous, as well, given the wide variety of laws pertaining to contests in the United States. Some states prohibit certain types of raffles, others require that giveaways involve games of knowledge not chance, and others may require a gambling license. Unfortunately, with the multi-state and multi-national nature of the Internet, one can easily cross borders, particularly in social media, and inadvertently run afoul of these laws when running any sort of contest. Be sure to check with an attorney experienced in Internet law before you run such an event.
Social media will undoubtedly continue to grow and evolve, as will the laws pertaining to it. The best way to stay safe is to use common sense and treat social media just as one would the real world. If problems arise, or if you are concerned about the legality of something you plan to do through your social media network, you should contact a local attorney experienced in Internet law for assistance and guidance.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.